Waskul v. Washtenaw Cnty. Cmty. Mental Health, Civil Action No.: 16-10936

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: ELIZABETH A. STAFFORD, United States Magistrate Judge
• Citation: 569 F.Supp.3d 626
• Parties: Derek WASKUL, et al., Plaintiffs, v. WASHTENAW COUNTY COMMUNITY MENTAL HEALTH, et al., Defendants.
• Docket Number: Civil Action No.: 16-10936
• Decision Date: 31 October 2021

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Derek WASKUL, et al., Plaintiffs,
v.
WASHTENAW COUNTY COMMUNITY MENTAL HEALTH, et al., Defendants.

Civil Action No.: 16-10936

United States District Court, E.D. Michigan, Southern Division.

Signed October 31, 2021

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Edward P. Krugman, National Center for Law and Economic Justice, New York, NY, Jordan Rebecca Berger, National Center for Law and Economic Justice, Fort Wayne, IN, Kyle M. Williams, Mark A. Cody, Disability Rights Michigan, Lansing, MI, Lisa S. Ruby, Michigan Poverty Law Program, Ann Arbor, MI, Nicholas Abed Gable, Legal Services of South Central Michigan, Ypsilanti, MI, for Plaintiffs Derek Waskul, Cory Schneider, Kevin Wiesner, Washtenaw Association for Community Advocacy.

Edward P. Krugman, National Center for Law and Economic Justice, New York, NY, Lisa S. Ruby, Michigan Poverty Law Program, Ann Arbor, MI, Nicholas Abed Gable, Legal Services of South Central Michigan, Ypsilanti, MI, Jordan Rebecca Berger, National Center for Law and Economic Justice, Fort Wayne, IN, for Plaintiff Hannah Ernst.

Kristin M. Heyse, Michigan Department of Attorney General, Lansing, MI, Stefani A. Carter, Ypsilanti, MI, for Defendant Washtenaw County Community Mental Health.

Cassandra A. Drysdale-Crown, Kristin M. Heyse, Precious Synott Boone, Michigan Department of Attorney General, Stephanie M. Service, William R. Morris, Michigan Department of Attorney General, Health, Education and Family Services Division, Lansing, MI, Sarah Christie Hillegonds, Madison Heights, MI, for Defendant Nick Lyon.

Cassandra A. Drysdale-Crown, Kristin M. Heyse, Michigan Department of Attorney General, Andrew J. Brege, Johnson Rosati Schultz & Joppich, P.C., Lansing, MI, Laura Bailey Brown, Fisher Phillips LLP, Kansas City, MO, Marcelyn A. Stepanski, Margaret T. Debler, Rosati Schultz Joppich & Amtsbuechler PC, Farmington Hills, MI, for Defendants Jane Terwilliger, Community Mental Health Partnership of Southeast Michigan.

Cassandra A. Drysdale-Crown, Kristin M. Heyse, Precious Synott Boone, Michigan Department of Attorney General, Stephanie M. Service, Michigan Department of Attorney General, Health, Education & Family Services Division, Lansing, MI, Sarah Christie Hillegonds, Madison Heights, MI, for Defendant Michigan Department of Health and Human Services.

OPINION AND ORDER RESOLVING DISCOVERY MOTIONS AND GRANTING PLAINTIFFS’ REQUEST FOR SANCTIONS

ECF NOS. 196, 201, 207

ELIZABETH A. STAFFORD, United States Magistrate Judge

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I. Introduction

In this opinion, the Court warns attorneys appearing in federal court either to be competent and cooperative in discovery about electronically stored information (ESI), or to partner with someone with ESI expertise. Many civil practitioners understand their obligations under the rules of discovery and readily cooperate to pursue "the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

But too often, courts have been compelled to issue "wake up call[s]" about "the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other [ESI]." William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co. , 256 F.R.D. 134, 134 (S.D.N.Y. 2009). Courts have had to amplify the expectation that counsel "be competent in their knowledge and ability to identify, preserve, collect, review, and produce ESI." DR Distributors, LLC v. 21 Century Smoking, Inc. , 513 F. Supp. 3d 839, 942 (N.D. Ill. 2021). It is this Court's turn to ring the alarm.

Plaintiffs here have not been perfect; they made broadly worded discovery requests that were not reasonably particularized.¹ See ECF No. 201-2. But plaintiffs’ counsel has tried to collaboratively develop ESI protocol for proportional discovery. See , e.g. , ECF No. 218-1, PageID.5783-5787; ECF No. 221. The main obstacle to effective ESI discovery here has been defense counsel's lack of experience in and understanding of ESI discovery.

Defense counsel insists that Washtenaw County Community Mental Health (WCCMH) and Washtenaw County are justified in refusing to engage in basic ESI discovery, or to do so promptly, because they lack enough resources and manpower. The Court rejects those excuses, orders WCCMH and the County to produce ESI discovery, and grants plaintiffs sanctions under Federal Rule of Civil Procedure 37(a)(5)(C).

II. Background

Four severely developmentally disabled adults join the Washtenaw Association for Community Advocacy to sue Washtenaw County Community Mental Health (WCCMH) over WCCMH's 2015 modification to its budgeting methodology. ECF No. 146. "WCCMH is the public community mental health authority for Washtenaw County," and is thus a "separate legal public governmental entity" from Washtenaw County. Waskul v. Washtenaw Cty. Cmty. Mental Health , 979 F.3d 426, 437 (6th Cir. 2020) ; M.C.L. § 330.1000a(16). Plaintiffs allege that the budgeting methodology violates parts of the Medicaid Act, 42 U.S.C. § 1396a ; the Americans with Disabilities Act (ADA) 42 U.S.C. § 12132 ; § 504 of the Rehabilitation Act, 29 U.S.C. § 79; the Michigan Mental Health Code, Mich. Comp. Laws § 330.1722 ; and Michigan's

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Medicaid Habilitation Supports Waiver. Id. The individual plaintiffs sue on their own behalf and on behalf of others who are similarly situated. Id.

The Sixth Court found that plaintiffs’ amended complaint stated plausible claims and reversed an order of dismissal. Waskul , 979 F.3d 426. The court found plaintiffs’ claims under the Medicaid Act viable, focusing largely on plaintiffs’ allegations that the new budget methodology would cause home isolation. Id. at 445-458. "The heart of Plaintiffs’ complaint is that the current budget methodology prevents them from promptly receiving sufficient medically necessary services ... as required for them to live at home and participate in the community." Id. at 450. The court also said that plaintiffs’ allegations "suggest that they are at serious risk of institutionalization and that they are unreasonably confined at home ... Plaintiffs have stated a plausible claim for violation of the integration mandate under Title II of the ADA and § 504 of the Rehabilitation Act." Id. at 464.

In March 2021, the Honorable Arthur J. Tarnow held a scheduling conference with the parties. ECF No. 191. At the time, plaintiffs had already served third-party Washtenaw County with a subpoena for documents (ECF No. 196-1 ); third-party Health Management Associates (HMA) with a subpoena for documents about the Community Living Supports (CLS) program area at WCCMH and its predecessor organization (ECF No. 201-1 ); and a first set of interrogatories and requests for production of documents on WCCMH (ECF No. 201-2 ). In June and July 2021, competing motions about these discovery requests followed, and Judge Tarnow referred the motions to this Court for hearing and determination under 28 U.S.C. § 636(b)(1)(A). ECF No. 196 ; ECF No. 197 ; ECF No. 201 ; ECF No. 202 ; ECF No. 207 ; ECF No. 209.

The Court ordered the parties to meet and confer and to then file joint lists of unresolved issues. See ECF No. 199 ; ECF No. 208 ; ECF No. 213 ; ECF No. 218 ; ECF No. 224. During a September 2021 hearing, the Court ordered the parties to meet and confer again, with this direction:

• Counsel must make a reasonable inquiry about what responsive documents exist, how they are stored, and how they can be accessed. Id. , PageID.5849-5850.

• Federal Rule of Civil Procedure "26(b)(1) does not include a categorical prohibition of discovery based upon whether the parties consider [the requested discovery] to be confidential." Id. , PageID.5854-5855. Parties often "agree to protective orders so that the dissemination of the confidential information is limited, but ... there isn't a categorical right to withhold documents because of a confidentiality agreement." Id. , PageID.5855.

• The Court rejected WCCMH's assertion that plaintiffs or the Court had to determine search terms for ESI that would be proportional to the needs of the case without WCCMH's input. Id. , PageID.5870-5871. WCCMH could not "throw it to the Court to figure out or throw it to the plaintiffs to figure it out." Id.

• The Court also rejected WCCMH's argument that none of plaintiffs’ requests were relevant or proportional. The Court said, "I think that it is relevant to the question of affordability in general and ... whether the methodology is making it such that people who are getting services are receiving budgets that are inadequate for their needs." Id. , PageID.5874.

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• Addressing the proportionality factors of Rule 26(b)(1), the Court stated that the importance of the issues at stake was high, and that the parties need to do the work to "come to an agreement so that the burden is proportional, but I expect there to be some burden." Id. , PageID.5875. The Court recognized that ESI discovery is hard, but it emphasized that the parties needed "to do that work in a cooperative manner." Id.

• The Court would "order that documents related to nonparties

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